Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Megan K. Bolt

Gibson Law Office

Lafayette, Indiana

ATTORNEY FOR APPELLEE

Myriam Serrano

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kevin Sweat,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 22, 2020

Court of Appeals Case No.

19A-CR-3077

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause Nos.

79D02-1803-F1-2

79D02-1811-F4-41

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 2 of 11

Statement of the Case

[1] Kevin Sweat appeals the trial court’s denial of his motion to withdraw his guilty 

plea and the sentence imposed by the court pursuant to his plea agreement. 

Sweat raises the following three issues for our review:

1. Whether the trial court abused its discretion when it 

denied his motion to withdraw his guilty plea.

2. Whether the trial court abused its discretion when it 

sentenced him.

3. Whether his sentence is inappropriate in light of the nature 

of the offenses and Sweat’s character.

[2] We affirm.

Facts and Procedural History

[3] In 2018, under two cause numbers, the State charged Sweat with thirteen felony 

offenses relating to his alleged molestations of his minor daughter, C.S., and 

another minor child, R.S. In September of 2019, Sweat entered into a plea 

agreement with the State. Pursuant to that agreement, Sweat agreed to plead 

guilty in the two cause numbers to child molesting, as a Class A felony; child 

molesting, as a Class C felony; sexual misconduct with a minor, as a Level 4 

felony; child seduction, as a Level 5 felony; and incest, as a Class B felony. The 

State agreed to dismiss the remaining charges. The agreement further provided 

that, while the sentences in the two different cause numbers would run 
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consecutively, the aggregate total sentence imposed by the court “shall be forty 

to seventy (40-70) years.” Appellant’s App. Vol. 2 at 52.

[4] Prior to establishing a factual basis for his guilty plea at his ensuing change-ofplea hearing, Sweat and his attorney engaged in the following conversation:

[Attorney]: The State (inaudible) and so (inaudible) is not going 

to be day for day because it’s credit restricted. (Inaudible) but

because (inaudible) it’s a mistake on my part that I had failed to 

tell you (inaudible).

[Sweat]: So what’s that mean?

[Attorney]: So, what that means, is we talked about how the A 

felony you’ll get, you would get credit for day for day. It won’t 

be day for day. It’s gonna be at a slower rate because it’s a Credit 

Restricted Felony because of the statute. And so, it’s not gonna 

be the day for day, it’s gonna be at a slower rate. I still think we 

go forward with it but—

[Sweat]: Is that gonna be a longer time?

[Attorney]: No, I mean the length . . . everything else will stay 

the same, the Plea Agreement will stay the same, it’s just, you 

remember me talking about credit time, and you earn credit time? 

The time (inaudible) in which you earn credit time, in that, on 

that A Felony, will be slower than day for day, and not day for 

day. Do you understand what I’m saying?

[Sweat]: I think so. It sounds like I’ll get more time.

[Attorney]: (Inaudible) right and so that the time with it which 

you earn credit time will be at a slower rate than day for day.
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[Sweat]: Okay.

[Attorney]: Okay. Do you still want to go forward?

[Sweat]: Yeah.

[Attorney]: Okay.

Tr. at 16-17. Sweat then established a factual basis for his guilty plea. The 

court found that Sweat had entered into the plea agreement knowingly, 

“freely[,] and voluntarily”; accepted the plea agreement; entered its judgment of 

conviction; and set the matter for a sentencing hearing. Id. at 22-23.

[5] More than two months later, Sweat filed a motion to withdraw his guilty plea. 

In that motion, he asserted in relevant part as follows:

5. Immediately prior to entering the guilty plea and establishing 

a factual basis, [Sweat’s attorney at the hearing] advised [Sweat] 

that credit time [for the Class A felony] would be “slower” than 

day for day. [Sweat] was still not advised specifically what credit 

time would be earned.

6. [Sweat] accepted the Plea Agreement because he relied on [his 

attorney’s] representation that he could become eligible for 

release in ten (10) years.

7. [Sweat’s] belief that he would earn one day of credit for each 

day served was material to his decision to accept the Plea 

Agreement. [Sweat] would not have accepted the Plea 

Agreement if he had been properly advised that he would be 

credit restricted.
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Appellant’s App. Vol. 2 at 54-55. 

[6] The court held a hearing on Sweat’s motion to withdraw his guilty plea, after 

which the court denied Sweat’s motion. In reaching that decision, the court 

stated that credit time is not “a material element in determining . . . whether a 

person should plead because credit time is never guaranteed” but, rather, “is 

really an administrative issue” with the Department of Correction. Tr. at 35-36. 

The court also stated that Sweat’s attorney at the change-of-plea hearing

corrected his initial advice to Sweat on credit time prior to Sweat agreeing that 

he wanted to continue to proceed with the plea agreement.

[7] After an ensuing sentencing hearing, the court sentenced Sweat to an aggregate 

term of forty-seven years, with eight years suspended to probation. In 

determining that sentence, the court found the following aggravating and 

mitigating circumstances:

The Court finds as aggravating factors: the harm, injury, loss, or 

damage suffered by the victims is significant and greater than the 

elements necessary to prove the commission of the crime[s]; the 

impact the crimes ha[ve] had on the families of the victims; the 

defendant committed the crime of violence and knowingly 

committed the offense in the presence or within hearing of an 

individual who was less than 18 years of age; the overall 

seriousness of the offense[s]; the defendant was in a position of 

care, custody, and control of the victims; the defendant’s lack of 

empathy for his victims; the victim felt threat[en]ed to engage in 

the acts or that she couldn’t tell anyone about the offense.

The Court finds as mitigating factors: the defendant has no 

criminal history; the defendant plead[ed] guilty (diminished by 
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the benefit he received from the plea agreement); the defendant 

has strong support from family and friends; the defendant’s good 

work history; the defendant is willing to make restitution.

The Court further finds that the aggravating factors outweigh the 

mitigating factors.

Appellant’s App. Vol. 2 at 64-65. This appeal ensued.

Discussion and Decision

Issue One: Motion to Withdraw Guilty Plea

[8] On appeal, Sweat first asserts that the trial court abused its discretion when it 

denied his motion to withdraw his guilty plea. As the Indiana Supreme Court 

has explained:

Indiana Code § 35-35-1-4(b) governs motions to withdraw guilty 

pleas. After a defendant pleads guilty but before a sentence is 

imposed, a defendant may motion to withdraw a plea of guilty. 

Id. The court must allow a defendant to withdraw a guilty plea if 

“necessary to correct a manifest injustice.” Id.

By contrast, the court must deny the motion if withdrawal of the 

plea would “substantially prejudice[]” the State. Id. In all other 

cases, the court may grant the defendant’s motion to withdraw a 

guilty plea “for any fair and just reason.” Id.

A trial court’s ruling on a motion to withdraw a guilty plea 

“arrives in this Court with a presumption in favor of the ruling.” 

Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995). We will reverse 

the trial court only for an abuse of discretion. Id. In determining 

whether a trial court has abused its discretion in denying a 

motion to withdraw a guilty plea, we examine the statements 
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made by the defendant at his guilty plea hearing to decide 

whether his plea was offered “freely and knowingly.” Id.

Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (footnotes omitted; alteration 

original to Brightman).

[9] Sweat asserts that he did not enter into his guilty plea knowingly because he 

was unaware of the precise contours of the credit time, if any, he might accrue 

against his sentence. The record from the change-of-plea hearing makes clear 

that Sweat’s counsel at that hearing had initially misinformed Sweat regarding 

credit time, telling Sweat that he would earn day-for-day credit against his 

sentence. However, prior to proceeding with the plea agreement, this mistake 

was corrected—Sweat’s counsel informed Sweat that he would not earn dayfor-day credit but would instead earn credit time at a “slower” rate as a creditrestricted felon. Tr. at 16-17. Sweat acknowledged that he understood that he 

would have to actually serve “more time” as a result of his attorney’s 

clarification on credit time. Id. Nonetheless, when asked if he still wanted to 

proceed on the plea agreement with the corrected understanding on credit time, 

Sweat stated that he did.

[10] We are not persuaded that, had Sweat known the precise credit restriction, i.e., 

six days served for one day of credit,1 that that would have mattered to his 

1

 As relevant to the Class A felony conviction on which Sweat’s status as a credit-restricted felon is based, 

“[a] person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or 

sentencing is initially assigned to Class IV,” and a person assigned to Class IV “earns one (1) day of credit 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3077 | May 22, 2020 Page 8 of 11

decision to plead guilty. Sweat pleaded guilty knowing that his credit time was 

going to be some measure slower than one-for-one, and he was not so 

concerned about the precise rate of accrual that he wanted to inquire further 

before continuing with his plea agreement. Indeed, as the trial court noted 

when it denied Sweat’s motion to withdraw his guilty plea, there is no 

guarantee that any credit time will actually accrue against a defendant’s 

sentence once he begins his incarceration. In other words, Sweat received the 

full benefit of his bargain. Accordingly, we cannot say that the trial court 

abused its discretion when it denied Sweat’s motion to withdraw his guilty plea.

Issue Two: Whether the Trial Court 

Abused its Discretion in Sentencing Sweat

[11] Sweat next asserts that the trial court found and considered improper 

aggravators when it sentenced him. Sentencing decisions lie within the sound 

discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 

2008). An abuse of discretion occurs if the decision is “clearly against the logic 

and effect of the facts and circumstances before the court, or the reasonable, 

probable, and actual deductions to be drawn therefrom.” Gross v. State, 22 

N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.

[12] A trial court abuses its discretion in sentencing if it does any of the following:

time for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing.” I.C. 

§§ 35-50-6-3(d), -4(b) (Version a 2013)
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(1) fails “to enter a sentencing statement at all;” (2) enters “a 

sentencing statement that explains reasons for imposing a 

sentence—including a finding of aggravating and mitigating 

factors if any—but the record does not support the reasons;” (3) 

enters a sentencing statement that “omits reasons that are clearly 

supported by the record and advanced for consideration;” or (4) 

considers reasons that “are improper as a matter of law.”

Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g on 

other grounds, 875 N.E.2d 218 (Ind. 2007)).

[13] According to Sweat, the trial court first abused its discretion when it found 

Sweat’s “lack of empathy” to be an aggravator. Appellant’s Br. at 14. Sweat 

asserts that he demonstrated proper remorse at the sentencing hearing. But we 

conclude that Sweat’s argument on this factor is merely a request for this court 

to reweigh the evidence and reassess his credibility, which we will not do.

[14] Sweat next asserts that the court erred when it found that one of the offenses 

was committed in the presence of another minor and that one of the victims felt 

threatened during the commission of one or more of the offenses. But those 

findings are readily supported by the State’s exhibits at sentencing, namely, the 

police reports from the two victims. The trial court was not required “to turn a 

blind eye to the facts” that brought Sweat before it as demonstrated by those 

exhibits. Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013).

[15] Last, Sweat asserts that the trial court erred when it found his position of trust 

over C.S. to be an aggravating factor because his status as her father was a 

necessary element to his conviction for incest. But Sweat is not correct. His 
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position of trust was not a biological condition, and we have rejected this 

argument before. See Grimes v. State, 84 N.E.3d 635, 644 (Ind. Ct. App. 2017), 

trans. denied. The trial court did not abuse its discretion when it sentenced 

Sweat.

Issue Three: Indiana Appellate Rule 7(B)

[16] Sweat’s final argument on appeal is that his forty-seven-year sentence, with 

eight years suspended to probation, for five felony convictions relating to child 

molesting is inappropriate in light of the nature of the offenses and his 

character. But Sweat’s argument on this issue is premised on his belief that the 

sentence imposed is erroneous “in light of the improper aggravators” he 

identified in Issue Two. Appellant’s Br. at 17. As he summarizes his oneparagraph argument on this issue, “[h]ad the court not found and considered 

multiple improper aggravators with significant weight,” Sweat may have 

received a different sentence. Id. at 18.

[17] An argument under Indiana Appellate Rule 7(B) requires the appellant to show 

that the sentence imposed is inappropriate in light of the nature of offenses and 

his character. E.g., Sorenson v. State, 133 N.E.3d 717, 729 (Ind. Ct. App. 2019), 

trans. denied. Sweat makes no such argument under Appellate Rule 7(B). 

Accordingly, his argument on this issue is waived. See Ind. Appellate Rule 

46(A)(8)(a).

[18] Moreover, as we reject Sweat’s assertion that the trial court found improper 

aggravators, as explained in Issue Two, we reject his argument that his sentence 
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is inappropriate in light of those aggravators. And Sweat’s remaining assertions 

on this issue are not sufficient to carry his burden of demonstrating appellate 

relief under Appellate Rule 7(B). Sweat pleaded guilty to five felonies relating 

to the molestation of his daughter and another minor, established a clear factual 

basis for those offenses, agreed to be sentenced within a range of forty to 

seventy years, and actually received a sentence of forty-seven years with eight 

years suspended. We affirm his sentence.

[19] Affirmed.

Kirsch, J., and Brown, J., concur.